In 2008, Toyota Matrix advertised the “Your Other You” campaign which targeted young males. It encouraged individuals to provide someone else’s personal information, who would then receive an invitation to a fake personality test.  What really happened was, the “victim” ended up receiving numerous disturbing emails from an imaginary soccer hooligan with a pitbull named Trigger.  This impersonator claimed to be on their way to the victim’s house, who had no idea it was a hoax. In order to promote the advertising campaign, a fake social networking account for the stalker was even set up.

How would a similar case play out here in Canada? Under the PIPEDA framework , there would possibly be a violation of the law because of the alleged collection, use and disclosure of personal information without consent. Further, PIPEDA’s requirement that the “identified purposes” of any collection, use or disclosure of personal information would not likely met. Finally, the reasonableness test, enshrined in PIPEDA, would probably be violated. In short, the facts pertaining to the case could put the relevant parties in the crosshairs of the Office of the Privacy Commissioner of Canada and courts. As a result, the case should serve as a warning to advertising agencies to ensure that privacy law considerations are thoroughly canvassed with legal counsel before initiating campaigns involving personal information – especially where people are submitting friends’ data.

(Hat tip to @privacylawyer David Fraser for the heads-up!)

This very question has yet to be the focus of judicial consideration in Canada, and it appears as though it remains an unresolved issue in most other jurisdictions.  Although bloggers and writers have analyzed e-mail disclaimers, there is no authoritative jurisprudence or legislation to shore up their arguments.  There are a number of issues surrounding the enforceability discussion, including, among other things:

• the lack of consideration between parties to create binding contracts via typical e-mails;
• the timing of e-mail disclaimers (they come at the end of e-mails, after recipients have read the messages); and
• the otherwise lack of confidentiality associated with e-mails, which has come to light through the ever-increasing number of e-fraud cases.

That said, it is always safer to err on the side of caution.  In the event your organization were unlucky enough to be sued for the contents of an e-mail, it may prove useful to have used an e-mail disclaimer.  At the end of the day, even though the enforceability of e-mail disclaimers may not have yet been judicially considered, having an appropriately drafted e-mail disclaimer may help mitigate your businesses’ liability in the event of an unfortunate e-mail mishap.

E-mail disclaimers should be drafted with legal and business considerations in mind in such a manner that reflects the values, marketing strategy and risk tolerance of your organization. Please contact me if I can provide any assistance in drafting an e-mail disclaimer that suits your organization’s needs.

Still not convinced? Consider this list of impressive apps for today’s traveler: Pocket Express, an app that acts as a mobile concierge; Stanza, an app that allows a user to load magazines and books to their smartphone; and GoodFood, which helps a user pick and locate a restaurant based on an array of dining preferences. It’s a good time to be a smartphone user, but perhaps even a better time to be an entrepreneur. Smartphones are increasingly offering businesses a direct window into the hearts, minds and, yes, wallets of potential customers.

But it’s not all good news, privacy advocates remind us. Many smartphone apps guzzle fuel like your Dad’s ’70 GTO, except they’re eating personal user information instead of gasoline. For example, your app may record your location, gender and birth year before it spits out the location of that perfect sale you’ve been looking for. A sizeable amount of personal information is in play, but, fortunately, Ontario’s Office of the Information and Privacy Commissioner (“IPC”) has been ahead of the curve with its call for “Privacy by Design“. Initially unveiled over 10 years ago, the concept of Privacy by Design combines privacy and security measures at the design specification stage of a project. Instead of waiting until privacy problems pop up to deal with them, Privacy by Design contemplates a proactive approach toward potential privacy issues. This methodology uses Privacy Enhancing Technology such as encryption to provide both maximum security and privacy protection. It is, as the IPC bills it, a “win-win” situation. Other examples of Privacy by Design include anonymous billing systems and depersonalization software.

It’s an exciting time to be a technologically-inclined entrepreneur, but the privacy consequences of smartphone apps cannot (and should not) be ignored. Any business that is considering creating or otherwise implementing an app should consider the privacy implications of doing so, preferably at the early stages of project development.

This case is noteworthy because it demonstrates the importance of intellectual property rights and how some protect such assets.  Having a copyright gives Van Halen the right to control how his design can or cannot be used.  Intellectual property rights allow owners to protect their assets against infringement and defend their rights in court. A successful claim may result in monetary damages, an injunction from the use of the infringing material or destruction of the infringing material.  Van Halen is taking advantage of the court process by claiming damages and the destruction of all products associated with the Nike Dunk runners. On the other hand, lawsuits can be expensive and that in order to infringe the materials have to be substantially similar.  It’s questionable whether the Nike Dunks bare a substantial similarity to Van Halen’s guitar design.  Remember the high profile decision between The Wyrd Sisters, a Winnipeg folk group, and Warner Bros. Entertainment Inc. that saw the band lose a considerable amount of money (including $140,000 in costs) when the judge ruled that the band’s name would not be confused with a band in one of the Harry Potter movies. 

Finally, Van Halen may be “running with the devil” and inviting himself up to his own copyright infringement lawsuit.  The EVH shoe line has been argued by some as bearing a striking resemblance to Converse All-Stars, a company that just happens to be owned by – you guessed it – Nike.

Generally, the ® or ™ symbols are used in connection with a trade-mark, which is a word, symbol or design used to distinguish the wares or services of one person or organization from those of others. Trade-marks can be valuable intellectual property.

The Trade-marks Act (Canada) (the “TM Act”) does not contain any marking requirements. However, trade-mark owners often indicate their registration through certain symbols, namely, ® (registered) or ™ (trade-mark). Although the TM Act does not require the use of these symbols, in Canada, the ™ and ® symbols may be used whether the trade-mark is registered or not. However, while this is not a requirement of the TM Act, the ® should be used only if the mark is registered with the Canadian Intellectual Property Office. If the ® is used and the mark is not in fact registered, it may be possible for someone to argue its use amounts to false advertising. The ™ suggests the mark is not registered, but can help establish distinctiveness in the mark.

One should be especially careful using the ® outside in Canada. In certain jurisdictions, including the U.S., ® may only be used by the owner of a mark following registration with that jurisdiction’s trade-mark office. For example, if a Canadian company is marketing a product in the U.S. and its mark is not registered with the U.S. Patent and Trademark Office, it would not be able to use the ® in connection with its mark and could only use the ™, even if the company has been using ® in Canada all along.

Businesses should consider having their intellectual property “audited” by legal counsel with an expertise in the field and, in doing so, developing an appropriate trade-marks business strategy. When I advise my clients on trade-marks matters I often rely on the expert counsel of my friends and colleagues Jolin Spencer (whom I should thank for this blog post), Robert Watchman and Howard Nerman, all of whom have expertise in trade-marks law.

According to the government’s News Release, the ECPA would allow businesses and individuals to initiate civil actions against anyone who violates the law.  The ECPA deals with unsolicited text messages, or “cellphone spam”, as a form of “unsolicited commercial electronic message”.

It would establish a regulatory enforcement regime that would enable the CRTC to impose penalties of up to $1 million for individuals and $10 million in all other cases.  The Competition Bureau would use a penalty regime already provided for in the Competition Act, and the federal Privacy Commissioner‘s powers to cooperate and exchange information with her counterparts would be expanded in respect of the Personal Information Protection and Electronic Documents Act.

The ECPA is nearly 70 pages long.  Stay tuned to this blog.  As soon as I’ve been able to digest the content I’ll post again on how the ECPA is likely going to affect Canadian businesses, especially those enaged in online marketing.

Privacy matters to most customers: Staff should be able to handle concerns

My October 1, 2008 column in the Winnipeg Free Press reports on a survey released by the Privacy Commissioner of Canada and the vital need for businesses to train their staff to identify and deal with privacy issues.  Privacy training, or lack thereof, can affect the bottom line.

Incubator nurtures local digital gaming

My February 13, 2008 column in the Winnipeg Free Press reports on Canada’s first digital gaming business incubator, Fortune Cat Games Studio, and its efforts to assist entrepreneurs in this potentially lucrative field.

Ruling has significant implication for businesses

In my August 3, 2005 column in the Winnipeg Free Press I discuss the implications of a ruling of the privacy commissioner dealing with unwanted marketing materials.